Exhibit 10.2
MASTER LEASE AGREEMENT
Dated as of
February 1, 2002
Between
GENERAL ELECTRIC CAPITAL CORPORATION,
FOR ITSELF AS LESSOR AND AS AGENT FOR LESSORS,
Agent
and
GALAXY INDUSTRIES CORPORATION
MID STATE MACHINE PRODUCTS
NATIONWIDE PRECISION PRODUCTS CORP.
GENERAL AUTOMATION, INC.
CERTIFIED FABRICATORS, INC.
XXXXXXXX MACHINE & TOOL CO., INC.
GALAXY PRECISION PRODUCTS CORP.
and
PRECISION PARTNERS, INC.
Lessees
MASTER LEASE AGREEMENT
THIS MASTER LEASE AGREEMENT, dated as of February 1, 2002 (this
"AGREEMENT"), between GENERAL ELECTRIC CAPITAL CORPORATION, FOR ITSELF AS LESSOR
AND AS AGENT FOR LESSORS, with an office at 000 Xxxxxxx Xxxxx, Xxxxxx Xxxxx,
Xxxxxxx, Xxxxxxxxxxx 00000 (in its capacity as Agent, "AGENT"), and GALAXY
INDUSTRIES CORPORATION, a Michigan corporation with its mailing address and
chief place of business at 00000 Xxx Xxxx, Xxxxxxxx, XX 00000, MID STATE MACHINE
PRODUCTS, a Maine corporation with its mailing address and chief place of
business at 0000 Xxxxx Xxxxx, Xxxxxxx, Xxxxx 00000, NATIONWIDE PRECISION
PRODUCTS CORP., a New York corporation with its mailing address and chief place
of business at 000 Xxxx Xxxx Xxxxx, Xxxxxxxxx, Xxx Xxxx 00000, GENERAL
AUTOMATION, INC., an Illinois corporation with its mailing address and chief
place of business at 0000 Xxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, CERTIFIED
FABRICATORS, INC., a California corporation with its mailing address and chief
place of business at 0000 Xxxxxxx Xxxxxx, Xxxxx Xxxx, Xxxxxxxxxx 00000, XXXXXXXX
MACHINE & TOOL CO., INC., a New York corporation with its mailing address and
chief place of business at 000 Xxxxxxxxx Xxx, Xxxxxxxxx, Xxx Xxxx, 00000, GALAXY
PRECISION PRODUCTS CORP., a Delaware corporation with its mailing address and
chief place of business at 00000 Xxxxxxxx Xxxxxx, Xxxxxx, Xxxxxxxx 00000, and
PRECISION PARTNERS, INC., a Delaware corporation with its mailing address and
chief place of business at 000 Xxxxxxx Xxxxx, Xxxxx 000, Xxxxxx, Xxx Xxxxxx
00000 (hereinafter collectively called "LESSEES").
WITNESSETH:
I. LEASING:
(a) Pursuant to that certain Credit Agreement of even date herewith by and
among the Lessees, Precision Partners Holding Company ("Guarantor"), the Agent,
General Electric Capital Corporation as Revolving Credit Agent, and the Lenders
signatory thereto (as the same may from time to time be amended, restated,
supplemented, or otherwise modified, the "Credit Agreement"), (i) the Revolving
Lenders (as defined in the Credit Agreement) have agreed to make available to
Lessees a Revolving Loan facility pursuant to which the Revolving Lenders will
from time to time make available to the Lessees advances and letters of credit
in an aggregate amount not to exceed $25,000,000 at any one time outstanding,
(ii) the Term Lenders (as defined in the Credit Agreement) will make available
to the Lessees a Term Loan in the aggregate principal amount of $44,050,000, and
(iii) the Lessors (as defined in the Credit Agreement) will lease the Equipment
(as hereinafter defined) to the Lessees. All capitalized terms used herein or in
any Schedule and not otherwise defined shall have the meanings given to such
terms in the Credit Agreement.
(b) This Agreement shall be effective from and after the date of execution
hereof. Subject to the terms and conditions set forth below, Lessors agree to
lease to Lessees, and Lessees agree to lease from Lessors, the equipment
("EQUIPMENT") described in Annex A to any schedule hereto ("SCHEDULE"). Each
item of Equipment shall be used by the Lessee designated in the applicable
Schedule (the "DESIGNATED LESSEE"). Terms defined in a Schedule and not
otherwise defined herein shall have the meanings ascribed to them in such
Schedule.
(c) The obligation of Lessors to purchase any of the Equipment and to
lease the same to Lessees shall be subject to satisfaction of the conditions
precedent set forth in Section 2.1 and Annex D to the Credit Agreement and to
receipt by Lessors, on or prior to the Lease Commencement Date with respect to
such Equipment, of each of the following documents in form and substance
satisfactory to Lessors:
(i) a Schedule duly executed by Agent and Lessees relating to the
Equipment then to be leased hereunder, substantially in the form of
Exhibit 1 hereto;
(ii) with respect to any Equipment as to which a xxxx of sale has not
previously been delivered to and accepted by Agent, a xxxx of sale from
Seller (as defined in the Xxxx of Sale) to Agent substantially in the form
of Exhibit 2 hereto;
(iii) evidence of insurance which complies with the requirements of
Section IX;
(iv) upon request of Agent, copies of all original purchase orders and
invoices in respect of the Equipment, along with evidence satisfactory to
Agent that all amounts constituting Capitalized Lessors' Cost have been
paid in full;
(v) such Uniform Commercial Code, tax and judgment lien searches as Agent
shall deem necessary and desirable, and such releases and terminations of
such liens and encumbrances with respect to the Equipment as Agent in its
sole discretion shall require;
(vi) complete descriptions of the Equipment to be leased hereunder,
including manufacturer, model number(s), serial number(s), age, original
cost breakdown including "hard" and "soft" costs and equipment
specifications (the "EQUIPMENT SUBSTANTIATION");
(vii) a Certificate of Acceptance executed by Designated Lessee, in
substantially the form of Annex B to the Schedule covering all of the
Equipment described in the applicable Schedule; and
(viii) such other documents related to the Equipment or this Lease as
Agent may reasonably request.
Upon execution by the Designated Lessees of any Certificate of Acceptance, the
Equipment described thereon shall be deemed to have been irrevocably accepted by
Lessees for lease hereunder.
(d) For administrative convenience, Precision Partners, Inc. (the "Lessee
Representative") is hereby irrevocably appointed by each of the Lessees as agent
for each of the Lessees for the purpose of receiving and delivering notices, and
executing Lease Documents on behalf of the Lessees. By reason thereof, Lessee
Representative is hereby irrevocably appointed by each Lessee as the
attorney-in-fact of each Lessee. In its capacity as agent, Lessee Representative
shall have the power and authority, in its own name, through its authorized
officer or officers, (a) to execute and deliver Lease Documents, and (b) to
receive and deliver notices. By reason of the foregoing, the Agent is hereby
irrevocably authorized by each of the Lessees to execute, deliver and accept
Lease Documents executed by Lessee Representative on behalf of any or all of the
Lessees. Each Lessee also appoints the Designated Lessee for each Schedule as
agent for each of the Lessees for the purpose of executing a Certificate of
Acceptance, and all other Lease Documents relating to such Schedule on behalf of
the Lessees. By reason thereof, Designated Lessee is hereby irrevocably
appointed by each Lessee as the attorney-in-fact of each Lessee. The Agent
assumes no responsibility or liability for any errors, mistakes, and/or
discrepancies in the oral, telephonic, written or other transmissions of any
instructions, orders, requests and confirmations between Lessee Representative
or any Designated Lessee and the Lessees in connection with this Agreement, any
Schedule or any Lease Document executed in connection herewith.
II. TERM, RENT AND PAYMENT:
(a) The rent payable hereunder (the "RENT") and Lessees' right to use the
Equipment shall commence on the date of execution by Designated Lessee of the
Certificate of Acceptance for such Equipment ("LEASE COMMENCEMENT DATE"). The
term of this Agreement (the "TERM") shall be the period specified in the
applicable Schedule. If any Term is extended, the word "Term" shall be deemed to
refer to all extended terms, and all provisions of this Agreement shall apply
during any extended terms, except as may be otherwise specifically provided in
writing.
(b) Lessees shall make each payment of Rent under this Agreement not later
than 2:00 p.m. (New York time) on the day when due in immediately available
funds to: Bankers Trust Xxx Xxxx, Xxx Xxxx, Xxx Xxxx 00000, Account No.
00-000-000, ABA No. 000-000-000, or to such other account as Agent may direct in
writing. For purposes of computing interest and Fees, all payments shall be
deemed received on the day of receipt of immediately available funds therefore
by the Agent prior to 2:00 p.m. New York time. Rent received after 2:00 p.m. New
York time on any Business Day shall be deemed to have been received on the
following Business Day. Payments of Rent shall be in the amount set forth in,
and due in accordance with, the provisions of the applicable Schedule. In no
event shall any Rent payments, made in the amounts required on the applicable
Schedule, be refunded to Lessees.
III. TAXES:
(a) Lessees shall have no liability for taxes imposed by the United States
of America or any State or political subdivision thereof which are on or
measured by the net income of Lessors or any franchise taxes imposed in lieu
thereof. Lessees shall (i) reimburse Lessors (on an after-tax basis) within ten
(10) business days after Lessees' receipt of written request for reimbursement
for any taxes not excluded from the first sentence of this Section III(a)
charged to or assessed against Lessors, (ii) on request of Agent, submit to
Agent written evidence of Lessees' payment of such taxes and (iii) not file any
return with any taxing authority which is inconsistent with the ownership of the
Equipment by Lessees.
(a) Lessees shall report (to the extent that it is legally permissible)
and pay and discharge or cause to be paid and discharged promptly all other
taxes, fees and assessments due, imposed, assessed or levied against any
Equipment (or the purchase, ownership, delivery, leasing, possession, use or
operation thereof) by any foreign, Federal, state or local government or taxing
authority during or related to the term of this Agreement, subject to Lessees'
right to contest such taxes in good faith and by appropriate proceedings in
accordance with the provisions of Section 5.2 of the Credit Agreement.
IV. REPORTS; COVENANTS:
(a) Lessees will notify Agent in writing, within ten (10) days after
Lessees obtain notice that any tax or other lien (other than as permitted under
Section V(c)) shall have attached to any Equipment, of the full particulars
thereof and of the location of such Equipment on the date of such notification.
(b) Lessees will deliver to Lessors, within the time frames set forth in
Section 4.1 of the Credit Agreement each of the financial statements and other
reports required to be delivered pursuant to Section 4.1 of the Credit
Agreement, as such section may be amended or otherwise modified from time to
time.
(c) In accordance with the terms of the Credit Agreement, each Lessee
shall, during normal business hours, from time to time upon one (1) Business
Day's prior notice as frequently as Agent determines to be appropriate: (a)
provide Agent or any of its officers, employees and agents access to the
Equipment Locations and the Equipment, and (b) permit Agent and any of its
officers, employees and agents, to inspect, audit and make extracts from any
Lessee's books and records pertaining to the Equipment. If an Event of Default
shall have occurred and be continuing or if access is necessary to preserve or
protect the Equipment as determined by Agent, Revolving Credit Agent, or any
Lender, upon notice, each such Lessee shall provide such access to Agent,
Revolving Credit Agent, or any Lender, at all times.
(d) Lessees will keep the Equipment in the possession of the Designated
Lessee specified in the applicable Schedule, at the Equipment Location specified
in the applicable Schedule; provided, however, that Lessees may remove an item
of Equipment solely in accordance with the terms of the Credit Agreement.
(e) Lessees will comply with each and every one of the covenants set forth
in Sections 4, 5 and 6 of the Credit Agreement, and all amendments to and
waivers with respect to the Sections 4, 5 and 6 of the Credit Agreement, as the
same shall be amended or otherwise modified from time to time.
V. DELIVERY, USE AND OPERATION:
(a) The parties acknowledge that the Equipment is in the Lessees'
possession as of the Lease Commencement Date.
(b) Lessees agree that each item Equipment will be used by the Designated
Lessee solely in the conduct of its business and in a manner complying with all
applicable material Federal, state, and local laws and regulations, except to
the extent that the failure to comply, individually or in the aggregate, would
not reasonably be expected to have a Material Adverse Effect, and any applicable
insurance policies.
(c) Lessees shall keep the Equipment free and clear of all liens and
encumbrances other than (i) those in favor of Agent, (ii) those which result
from acts of Lessors, and (iii) Permitted Encumbrances. Lessors shall not sell,
transfer, encumber or otherwise dispose of the Equipment except in accordance
with the provisions of the Credit Agreement.
VI. SERVICE:
(a) Lessees will not, without the prior consent of Agent, affix or install
any accessory, equipment or device on any Equipment if such addition will impair
the value, originally intended function or use of such Equipment in any material
respect.
(b) Any alterations or modifications to the Equipment that may, at any
time during the term of this Agreement, be required to comply with any
applicable law, rule or regulation shall be made at the expense of Lessees.
VII. CASUALTY:
(a) Anything herein to the contrary notwithstanding, upon the occurrence
of loss, damage or casualty to the Equipment, if the Lessees are reasonably able
to replace the affected Equipment with Equipment of equal or greater value or
restore the damaged item of Equipment to at least its value prior to such
casualty occurrence, then the Net Cash Proceeds resulting from the casualty
occurrence shall be applied to the restoration of the affected asset or
replacement of the affected asset with an asset of the same or greater value
used or usable in the business of the Lessees, upon and subject to the
conditions set forth in Section 1.18 of the Credit Agreement.
(b) In the event that the Lessees are not reasonably able to replace the
affected Equipment with Equipment of equal or greater value or restore the
damaged item of Equipment to at least its value prior to such casualty
occurrence, or Lessees are otherwise unable to comply with the provisions of
Section 1.18 of the Credit Agreement, then the Net Cash Proceeds shall be
applied in accordance with and subject to the provisions of Section 1.2.3 or 6.8
of the Credit Agreement.
VIII. LOSS OR DAMAGE:
Lessees hereby assume and shall bear the entire risk of any loss, theft,
damage to, or destruction of, any unit of Equipment from any cause whatsoever
other than gross negligence or willful misconduct of an Indemnified Person.
IX. INSURANCE:
Lessees agree, at their own expense, to keep all Equipment insured for
such amounts as are required by the Credit Agreement.
X. RETURN OF EQUIPMENT:
(a) Upon any expiration or termination of this Agreement or any Schedule,
unless Lessees shall have exercised their purchase option, Lessees shall
promptly, at their own cost and expense: (i) perform any testing and repairs
required to place the affected units of Equipment in substantially the same
condition and appearance as when received by Lessees (reasonable wear and tear
excepted) and in good working order for their originally intended purpose; (ii)
if deinstallation, disassembly or crating is required, cause such units to be
deinstalled, disassembled and crated by an authorized manufacturer's
representative or such other service person as is satisfactory to Agent; and
(iii) return such units, free and clear of all liens and encumbrances other than
Permitted Encumbrances, to a location within the continental United States as
Agent shall direct.
(b) Until Lessees have fully complied upon any expiration or termination
of this Agreement or any Schedule with the requirements of Paragraph (a) above,
Lessees' Rent payment obligation and all other obligations under this Agreement
(collectively, the "OBLIGATIONS") shall continue from month to month
notwithstanding any expiration or termination of the Term. Lessors or Agent may
terminate such continued month-to-month leasehold interest upon three (3) days'
notice to Lessees. In addition to these Rents, Lessors and Agent shall have all
of the other rights and remedies available as a result of this nonperformance at
law, in equity or pursuant to this Agreement.
XI. EVENT OF DEFAULT:
(a) The occurrence of any one or more of the following events (regardless
of the reason therefore) shall constitute an "Event of Default" hereunder:
(i) The Lessees shall fail to pay any portion of any Rent payment
consisting of principal, as and when the same becomes due and payable;
(ii) The Lessees shall fail to pay any portion of any Rent payment
consisting of interest within two (2) Business Days of the date when the
same shall become due and payable;
(iii) The Lessees shall fail to make any other payment due hereunder
within five (5) days of the date when the same becomes due and payable; or
(iv) any Event of Default shall occur and be continuing under the
Credit Agreement.
(b) If any Event of Default shall occur and be continuing, the Agent for
the benefit of the Lenders may (and at the written request of the Requisite
Lenders shall) demand that Lessees forthwith pay to Agent (i) as liquidated
damages for loss of a bargain and not as a penalty, the Stipulated Loss Value of
the Equipment (calculated in accordance with the Schedules as of the Rent
Payment Date next preceding the declaration of an Event of Default), if any, and
(ii) all Rents and other sums then due hereunder. If Lessees fail to pay the
amounts specified in the preceding sentence, then, at the request of Agent,
Lessees shall comply with the provisions of Section X(a) hereof. Upon the
occurrence and during the continuance of an Event of Default, Lessees hereby
authorize Agent to enter, with or without legal process, any premises where any
Equipment is located and take possession thereof. Upon the occurrence and upon
the continuance of an Event of Default, Agent may, but shall not be required to,
(i) sell Equipment at private or public sale, in bulk or in parcels, with or
without notice, and without having the Equipment present at the place of sale;
(ii) exercise any remedies available under the Credit Agreement or the other
Operative Documents, or (iii) exercise any remedies available to a secured party
under applicable law. The proceeds of sale, lease or other disposition, if any,
shall be applied in accordance with the provisions of the Credit Agreement.
(c) In addition to the foregoing rights, upon the occurrence and during
the continuance of an Event of Default, Agent may terminate the lease as to any
or all of the Equipment.
(d) The foregoing remedies are cumulative, and any or all thereof may be
exercised in lieu of or in addition to each other or any remedies at law, in
equity, or under statute. If permitted by law, Lessees shall pay reasonable
attorney's fees actually incurred by Agent and/or Lenders in enforcing the
provisions of this Lease and any ancillary documents. Waiver of any Event of
Default shall not be a waiver of any other or subsequent Event of Default.
XII. ASSIGNMENT:
(a) OTHER THAN AS SPECIFICALLY PERMITTED UNDER THE CREDIT AGREEMENT OR BY
REQUISITE LENDERS IN WRITING, LESSEES SHALL NOT ASSIGN, MORTGAGE, SUBLET OR
HYPOTHECATE ANY EQUIPMENT OR THE INTEREST OF LESSEES HEREUNDER.
(b) Lessors may, without the consent of Lessees, assign this Agreement or
any Schedule, or sell participation interests in this Agreement, all upon the
terms and conditions set forth in Section 9.1 of the Credit Agreement.
(c) Subject always to the foregoing, this Agreement inures to the benefit
of, and is binding upon, the successors and assigns of the parties hereto.
XIII. NET LEASE; NO SET-OFF, ETC.:
This Agreement is a net lease. Lessees' obligation to pay Rent and other
amounts due hereunder shall be absolute and unconditional. Lessees shall not be
entitled to any abatement or reductions of, or set-offs against, said Rent or
other amounts, including, without limitation, those arising or allegedly arising
out of claims (present or future, alleged or actual, and including claims
arising out of strict liability in tort or negligence of Lessors or Agent) of
Lessees against Lessors or Agent under this Agreement or otherwise. This
Agreement shall not terminate and the obligations of Lessees shall not be
affected by reason of any defect in or damage to, or loss of possession, use or
destruction of, any Equipment from whatsoever cause other than the gross
negligence or willful misconduct of an Indemnified Person, as determined by a
court of competent jurisdiction. It is the intention of the parties that Rents
and other amounts due hereunder shall continue to be payable in all events in
the manner and at the times set forth herein unless the obligation to do so
shall have been terminated pursuant to the express terms hereof.
XIV. INDEMNIFICATION:
Lessees hereby jointly and severally agree to indemnify, save and keep
harmless Agent, Lessors, their participants, their agents, employees, successors
and assigns, from and against any and all losses, damages, penalties, injuries,
claims, actions and suits, including legal expenses, of whatsoever kind and
nature, in contract or tort, and including, but not limited to, Lessors' or
Agent's strict liability in tort, arising out of (i) the selection, manufacture,
purchase, acceptance or rejection of Equipment, the ownership of Equipment
during the Term, and the delivery, lease, possession, maintenance, uses,
condition, return or operation of the Equipment (including, without limitation,
latent and other defects, whether or not discoverable by Lessors or Agent or
Lessees and any claim for patent, trademark or copyright infringement or
environmental damage), or (ii) the condition of Equipment sold or disposed of
after use by Lessees, any sublessees or employees of Lessees except to the
extent that such losses, damages, penalties, injuries, claims, actions, and
suits are due to (1) any dispute between Lenders or any dispute between one or
more Lenders and the Agent or the Revolving Credit Agent, (2) the Indemnified
Person's gross negligence or willful misconduct as determined by a final
judgment of a court of competent jurisdiction, or (3) legal proceedings between
the Indemnified Persons and one or more of the Lessees in which the applicable
Lessee or Lessees prevail (under the standards of liability set forth herein).
Lessees shall, upon request, defend any actions based on, or arising out of, any
of the foregoing, except to the extent that such losses, damages, penalties,
injuries, claims, actions, and suits are due to the Indemnified Person's gross
negligence or willful misconduct as determined by a final judgment of a court of
competent jurisdiction or any dispute between Lenders or any dispute between one
or more Lenders and the Agent or the Revolving Credit Agent.
XV. DISCLAIMER:
LESSEES ACKNOWLEDGE THAT THEY HAVE SELECTED THE EQUIPMENT WITHOUT ANY
ASSISTANCE FROM LESSORS, AGENT, OR THEIR AGENTS OR EMPLOYEES. LESSORS AND AGENT
DO NOT MAKE, HAVE NOT MADE, NOR SHALL BE DEEMED TO MAKE OR HAVE MADE, ANY
WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, WRITTEN OR ORAL, WITH
RESPECT TO THE EQUIPMENT LEASED HEREUNDER OR ANY COMPONENT THEREOF, INCLUDING,
WITHOUT LIMITATION, ANY WARRANTY AS TO DESIGN, COMPLIANCE WITH SPECIFICATIONS,
QUALITY OF MATERIALS OR WORKMANSHIP, MERCHANTABILITY, FITNESS FOR ANY PURPOSE,
USE OR OPERATION, SAFETY, PATENT, TRADEMARK OR COPYRIGHT INFRINGEMENT, OR TITLE.
All such risks are to be borne by Lessees. Without limiting the foregoing,
Lessors and Agent shall have no responsibility or liability to Lessees or any
other person with respect to any of the following (i) any liability, loss or
damage caused or alleged to be caused directly or indirectly by any Equipment,
any inadequacy thereof, any deficiency or defect (latent or otherwise) therein,
or any other circumstance in connection therewith; (ii) the use, operation or
performance of any Equipment or any risks relating thereto; (iii) any
interruption of service, loss of business or anticipated profits or
consequential damages; or (iv) the delivery, operation, servicing, maintenance,
repair, improvement or replacement of any Equipment, except for such
responsibilities or liabilities that arise out of the gross negligence or
willful misconduct of the Agent or any such Lessor as determined by a final
judgment of a court of competent jurisdiction. If, and so long as, no Event of
Default exists under this Lease, Lessees shall be, and hereby are, authorized
during the term of this Lease to assert and enforce, at Lessees' sole cost and
expense, from time to time, in the name of and for the account of Lessors and/or
Lessees, as their interests may appear, whatever claims and rights Lessors may
have against any supplier of the Equipment.
XVI. REPRESENTATIONS AND WARRANTIES OF LESSEES:
Lessees hereby reconfirm each of the representations and warranties set
forth in Section 3 of the Credit Agreement.
XVII. OWNERSHIP FOR TAX PURPOSES; PRECAUTIONARY GRANT OF SECURITY INTEREST;
USURY SAVINGS:
(a) For income tax purposes, Lessors will treat Lessees as the Owners of
the Equipment. Accordingly, Lessors will not claim any tax benefits available to
the owner of the Equipment.
(b) Pursuant to the terms of the Credit Agreement and the other Operative
Documents, Lessees have granted to Agent, a first priority security interest
(subject to Permitted Encumbrances) in and to, among other things, the Equipment
and all proceeds and products thereof.
XVIII. END OF LEASE OPTIONS:
Provided that no Lessee is in default under this Agreement or any other
agreement between Lessors and Lessees, Lessees shall have the option, upon the
expiration of the term of each Schedule, to purchase all (but not less than all)
of the Equipment leased under all Schedules executed hereunder on an AS IS,
WHERE IS BASIS, without recourse, warranty, express or implied, for a purchase
price of $1.00 (plus all applicable sales taxes). The payment shall be due and
payable on the expiration of the Term.
XIX. MISCELLANEOUS:
(a) BECAUSE DISPUTES ARISING IN CONNECTION WITH COMPLEX FINANCIAL
TRANSACTIONS ARE MOST QUICKLY AND ECONOMICALLY RESOLVED BY AN EXPERIENCED AND
EXPERT PERSON AND THE PARTIES WISH APPLICABLE STATE AND FEDERAL LAWS TO APPLY
(RATHER THAN ARBITRATION RULES), THE PARTIES DESIRE THAT THEIR DISPUTES BE
RESOLVED BY A JUDGE APPLYING SUCH APPLICABLE LAWS. THEREFORE, TO ACHIEVE THE
BEST COMBINATION OF THE BENEFITS OF THE JUDICIAL SYSTEM AND OF ARBITRATION, THE
PARTIES HERETO WAIVE ALL RIGHT TO TRIAL BY JURY IN ANY ACTION, SUIT, OR
PROCEEDING BROUGHT TO RESOLVE ANY DISPUTE, WHETHER SOUNDING IN CONTRACT, TORT OR
OTHERWISE, AMONG AGENT, LESSORS AND ANY LESSEE ARISING OUT OF, CONNECTED WITH,
RELATED TO, OR INCIDENTAL TO THE RELATIONSHIP ESTABLISHED AMONG THEM IN
CONNECTION WITH, THIS AGREEMENT OR ANY OF THE OTHER OPERATIVE DOCUMENTS OR THE
TRANSACTIONS RELATED THERETO.
(b) Any cancellation or termination by Lessors or Agent, pursuant to the
provision of this Agreement, any Schedule, supplement or amendment hereto, or
the lease of any Equipment hereunder, shall not release Lessees from any then
outstanding obligations to Lessors or Agent hereunder.
(c) All Equipment shall at all times remain personal property of Lessees
regardless of the degree of its annexation to any real property and shall not by
reason of any installation in, or affixation to, real or personal property
become a part thereof.
(d) Time is of the essence of this Agreement. Lessors' or Agent's failure
at any time to require strict performance by Lessees of any of the provisions
hereof shall not waive or diminish Lessors' or Agent's right thereafter to
demand strict compliance therewith.
(e) All notices required to be given hereunder shall be in the manner set
forth in the Credit Agreement, addressed to the other party at its respective
address for notices set forth in the Credit Agreement, or at such other address
as such party shall from time to time designate in writing to the other party;
and shall be deemed to have been validly served, given or delivered (a) upon the
earlier of actual receipt and three (3) Business Days after deposit in the
United States Mail, registered or certified mail, return receipt requested, with
proper postage prepaid, (b) upon transmission, when sent by telecopy or other
similar facsimile transmission (with such telecopy or facsimile promptly
confirmed by delivery of a copy by personal delivery or United States Mail as
otherwise provided in Section 11.10 of the Credit Agreement), (c) one (1)
Business Day after deposit with a reputable overnight courier with all charges
prepaid or (d) when delivered, if hand-delivered by messenger, all of which
shall be addressed to the party to be notified and sent to the address or
facsimile number indicated on Annex I to the Credit Agreement or to such other
address (or facsimile number) as may be substituted by notice given as herein
provided.
(f) The Credit Agreement, the Fee Letter, this Agreement, the other
Operative Documents and any Schedule and Annexes thereto constitute the entire
agreement of the parties with respect to the subject matter hereof. NO VARIATION
OR MODIFICATION OF THIS AGREEMENT OR ANY WAIVER OF ANY OF ITS PROVISIONS OR
CONDITIONS, SHALL BE VALID UNLESS IN WRITING AND SIGNED BY AN AUTHORIZED
REPRESENTATIVE OF THE PARTIES HERETO IN ACCORDANCE WITH THE TERMS OF THE CREDIT
AGREEMENT. Any provision of this Agreement which is prohibited or unenforceable
in any jurisdiction shall, as to such jurisdiction, be ineffective to the extent
of such prohibition or unenforceability without invalidating the remaining
provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
(g) The representations, warranties and covenants of Lessees contained
herein or incorporated herein by reference shall be deemed to survive the
closing hereunder. The obligations of Lessees under Sections III(a), X, and XIV
which accrue during the term of this Agreement and obligations which by their
express terms survive the termination of this Agreement, shall survive the
termination of this Agreement.
(h) In case of a failure of Lessees to comply with any provision of this
Agreement within ten days of Agent's demand therefor, Agent or Lessors shall
have the right, but shall not be obligated, to effect such compliance, in whole
or in part; and all moneys spent and expenses and obligations incurred or
assumed by Agent or Lessors in effecting such compliance (together with interest
thereon at the rate specified in Paragraph (i) of this Section) shall constitute
additional Rent due to Lessors within five (5) days after the date Lessors send
notice to Lessees requesting payment. Lessors' or Agent's effecting such
compliance shall not be a waiver of Lessees' Event of Default.
(i) Upon the occurrence and during the continuance of any Event of Default
hereunder, the interest component of the Rent shall be increased to the Default
Rate (as defined in the Credit Agreement) and interest at the Default Rate shall
accrue from the initial date of such Event of Default until that Event of
Default is cured or waived in writing and shall be payable upon demand.
(j) Any provisions in this Agreement and any Schedule that are in conflict
with any statute, law or applicable rule shall be deemed omitted, modified or
altered to conform thereto.
(k) Lessees agree to pay on demand all reasonable out-of-pocket costs and
expenses incurred by Agent or Lessors in connection with the preparation,
execution, delivery, filing, recording, and administration of any of the Lease
Documents, including, without limitation, the reasonable fees and out-of-pocket
expenses of counsel for Agent and Lessors, and all reasonable out-of-pocket
costs and expenses, if any, in connection with the enforcement of any of the
Lease Documents.
(l) Each Lessee confirms and agrees that the provisions of Section 12 of
the Credit Agreement apply to the obligations created hereunder.
XX. CHOICE OF LAW; JURISDICTION:
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL IN ALL RESPECTS BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE
INTERNAL LAWS OF THE STATE OF NEW YORK (WITHOUT REGARD TO THE CONFLICT OF LAWS
PRINCIPLES OF SUCH STATE), INCLUDING ALL MATTERS OF CONSTRUCTION, VALIDITY AND
PERFORMANCE, REGARDLESS OF THE LOCATION OF THE EQUIPMENT. The parties agree that
any action or proceeding arising out of or relating to this Agreement may be
commenced in the United States District Court for the Southern District of New
York.
XXI. CHATTEL PAPER:
To the extent that any Schedule would constitute chattel paper, as such
term is defined in the Uniform Commercial Code as in effect in any applicable
jurisdiction, no security interest therein may be created through the transfer
or possession of this Lease in and of itself without the transfer or possession
of the original of a Schedule executed pursuant to this Lease and incorporating
the Lease by reference; and no security interest in this Lease and a Schedule
may be created by the transfer or possession of any counterpart of the Schedule
other than the original thereof, which shall be identified as the document
marked "Original" and all other counterparts shall be marked "Duplicate".
[REMAINDER OF PAGE INTENTIONALLY BLANK]
IN WITNESS WHEREOF, Lessees and Agent have caused this Master Lease
Agreement to be executed by their duly authorized representatives as of the date
first above written.
AGENT: LESSEES:
GENERAL ELECTRIC CAPITAL GALAXY INDUSTRIES CORPORATION
CORPORATION, FOR ITSELF MID STATE MACHINE PRODUCTS
AS LESSORS NATIONWIDE PRECISION PRODUCTS CORP.
AGENT FOR LENDERS GENERAL AUTOMATION, INC.
CERTIFIED FABRICATORS, INC.
XXXXXXXX MACHINE & TOOL CO., INC.
GALAXY PRECISION PRODUCTS CORP.
By: /s/ Xxxxxx Xxxxxxxx By: /s/ Xxxxx Xxxxxx
--------------------------------- ---------------------------------
Name: Xxxxxx Xxxxxxxx Name: Xxxxx Xxxxxx
Title: Assiant Vice President Title: Vice President
PRECISION PARTNERS, INC.
By: /s/ Xxxxx Xxxxxx
---------------------------------
Name: Xxxxx Xxxxxx
Title: Executive Vice President
and Chief Financial Officer
EXHIBIT NO. 1
EQUIPMENT SCHEDULE
SCHEDULE NO. ________
DATED THIS ___________ DAY OF ____________, 200__
TO MASTER LEASE AGREEMENT DATED AS OF FEBRUARY 1, 2002
Agent & Mailing Address: Lessees & Mailing Address:
GENERAL ELECTRIC CAPITAL GALAXY INDUSTRIES CORPORATION,
CORPORATION, FOR ITSELF AND AS MID STATE MACHINE PRODUCTS,
AS AGENT FOR LESSORS NATIONWIDE PRECISION PRODUCTS,
GENERAL AUTOMATION, INC.,
000 Xxxxxxx Xxxxx, 0xx Xxxxx CERTIFIED FABRICATORS, INC.,
Xxxxxxx, Xxxxxxxxxxx 00000 XXXXXXXX MACHINE & TOOL CO., INC.,
GALAXY PRECISION PRODUCTS CORP.,
PRECISION PARTNERS, INC.
c/o Precision Partners, Inc.
000 Xxxxxxx Xxxxx
Xxxxx 000
Xxxxxx, Xxx Xxxxxx 00000
This Equipment Schedule is executed pursuant to, and incorporates by reference
the terms and conditions of, and capitalized terms not defined herein shall have
the meanings assigned to them in, the Master Lease Agreement identified above
("Agreement;" said Agreement and this Schedule being collectively referred to as
"Lease").
A. Equipment.
---------
Pursuant to the terms of the Lease, Lessors agree to acquire and lease to
Lessees the Equipment listed on Annex A attached hereto and made a part hereof.
B. Financial Terms.
---------------
1. Capitalized Lessors' Cost: $5,950,000
2. Basic Term: Forty-Seven (47) months through January 1, 2006.
3. Basic Term Commencement Date: February 1, 2002.
4. Equipment Location: See Annex A.
5. Designated Lessee: See Annex A.
6. Designated Lessee Federal Tax ID No.: See Annex A
7. Last Delivery Date: Base Term Delivery Date.
8. Stipulated Loss Values: See Annex D.
C. Term and Rent.
-------------
1. Basic Term Rent. Commencing on April 1, 2002, and continuing on July 1,
2002, October 1, 2002 and on the last day of each LIBOR Period thereafter (each,
a "Rent Payment Date") during the Basic Term, Lessees shall pay as rent
installments of principal and interest, each such installment to be equal to the
Principal Amortization Amount (as hereinafter defined) for such Rent Payment
Date, if any, together with accrued and unpaid interest on the Unamortized
Principal Balance at the Interest Rate. Interest shall be calculated on the
basis of a 360-day year for the actual number of days elapsed.
As used herein, the following terms shall have the following meanings:
"Interest Rate" shall mean the Applicable LIBOR Rate plus the Applicable
Capital Lease LIBOR Margin; provided, however, that in no event shall the
Interest Rate be lower than the Applicable Capital Lease Interest Rate Floor.
"Principal Amortization Amount" shall mean that the amounts shown on Annex
C.
"Unamortized Principal Balance" shall mean, at any time, the Capitalized
Lessors' Cost minus the aggregate of the Principal Amortization Amounts
theretofore paid, as more particularly shown on Annex D hereto.
2. If any Rent Payment Date is not a Business Day, the Rent otherwise due
on such date shall be payable on the next succeeding Business Day.
3. Notwithstanding anything herein to the contrary, if a court of
competent jurisdiction determines in a final order that the rate of interest
payable hereunder exceeds the highest rate of interest permissible under law
(the "Maximum Lawful Rate"), then so long as the Maximum Lawful Rate would be so
exceeded, the rate of interest payable hereunder shall be equal to the Maximum
Lawful Rate; provided, however, that if at any time thereafter the rate of
interest payable hereunder is less than the Maximum Lawful Rate, Lessees shall
continue to pay interest hereunder at the Maximum Lawful Rate until such time as
the total interest received by Agent, on behalf of Lessors is equal to the total
interest which would have been received had the interest rate payable hereunder
been (but for the operation of this paragraph) the interest rate payable as
otherwise provided in this Agreement. Thereafter, interest hereunder shall be
paid at the rate(s) of interest and in the manner provided above, unless and
until the rate of interest again exceeds the Maximum Lawful Rate, and at that
time this paragraph shall again apply. In no event shall the total interest
received by Lessors pursuant to the terms hereof exceed the amount which Lessors
could lawfully have received had the interest due hereunder been calculated for
the full term hereof at the Maximum Lawful Rate. If the Maximum Lawful Rate is
calculated pursuant to this paragraph, such interest shall be calculated at a
daily rate equal to the Maximum Lawful Rate divided by the number of days in the
year in which such calculation is made. If, notwithstanding the provisions of
this Section 5, a court of competent jurisdiction shall finally determine that
Lessors have received interest hereunder in excess of the Maximum Lawful Rate,
Agent shall, to the extent permitted by applicable law, promptly apply such
excess to the principal amortization components of the Rent, in the inverse
order of maturity and thereafter shall refund any excess to Borrowers or as a
court of competent jurisdiction may otherwise order.
4. Notwithstanding anything herein to the contrary, if the introduction of
or any change in law or regulation (or change in the interpretation thereof)
shall make it unlawful, or any central bank or Governmental Authority shall
assert that it is unlawful, for Lessors to charge interest at the Interest Rate,
Section 1.15(c) of the Credit Agreement shall govern.
7. Upon the occurrence and continuance of any Event of Default, the
Interest Rate shall be increased to the Default Rate (as defined in the Credit
Agreement) and interest at the Default Rate shall accrue from the initial date
of such Event of Default until such Event of Default is cured or waived in
writing in accordance with the terms of the Credit Agreement and shall be
payable upon demand.
D. Insurance.
---------
1. Public Liability: $7,000,000, total liability per occurrence.
2. Casualty and Property Damage: An amount equal to the higher of the
Stipulated Loss Value or the full replacement cost of the Equipment.
This Schedule is not binding or effective with respect to the Agreement or
Equipment until executed on behalf of Agent and Lessees by authorized
representatives of Agent and Lessees, respectively.
IN WITNESS WHEREOF, Lessee and Agent have caused this Schedule to be
executed by their duly authorized representatives as of the date first above
written.
AGENT: LESSEE:
GENERAL ELECTRIC CAPITAL GALAXY INDUSTRIES CORPORATION
CORPORATION, FOR ITSELF AND AS MID STATE MACHINE PRODUCTS
AGENT FOR LESSORS NATIONWIDE PRECISION PRODUCTS
CORP.
GENERAL AUTOMATION, INC.
CERTIFIED FABRICATORS, INC.
XXXXXXXX MACHINE & TOOL CO., INC.
GALAXY PRECISION PRODUCTS CORP.
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
PRECISION PARTNERS, INC.
By:
---------------------------------
Name:
-------------------------------
Title:
------------------------------
ANNEX A
TO
SCHEDULE NO. ____________________
DATED THIS _____ DAY OF ________, 200__
TO MASTER LEASE AGREEMENT
DATED AS OF FEBRUARY 1, 2002
DESCRIPTION OF EQUIPMENT
Initials:
-------- ------------
Agent Lessees
ANNEX B
TO
SCHEDULE NO. ________
DATED THIS _____ DAY OF __________, 200__
TO MASTER LEASE AGREEMENT
DATED AS OF FEBRUARY 1, 2002
CERTIFICATE OF ACCEPTANCE
To: General Electric Capital Corporation,
For Itself and as Agent for Lessors
Pursuant to the provisions of the above Schedule and Master Lease
Agreement (collectively, the "LEASE"), the undersigned Designated Lessee
certifies and warrants that (a) all Equipment listed in the referenced Schedule
(the "Equipment") is in good condition and appearance, installed (if
applicable), and in working order; and (b) on behalf of Lessees the Designated
Lessee accepts the Equipment for all purposes of the Lease and all attendant
documents.
Designated Lessee does further certify that as of the date hereof (i)
Lessees are not in default under the Lease; and (ii) the representations and
warranties made by Lessees pursuant to or under the Lease are true and correct
in all material respects on the date hereof.
Dated: __________ ___, ____ By:
--------------------------------
Name:
-------------------------------
Title:
------------------------------
ANNEX C
TO
SCHEDULE NO. ________
DATED THIS _____ DAY OF _________, 200__
TO MASTER LEASE AGREEMENT DATED AS OF FEBRUARY 1, 2002
PRINCIPAL AMORTIZATION TABLE(1)
RENT PAYMENT STIPULATED LOSS
DATE____ VALUE___
---- -----
THIS CHART WILL BE COMPLETED ONCE THE RATE IS SELECTED AND WE KNOW HOW
FREQUENTLY RENT WILL BE PAID. THE PRINCIPAL AMORTIZATION COMPONENT OF RENT WILL
CORRESPOND TO THE PRINCIPAL PAYMENTS ON THE TERM LOAN.
Initials:
-------- ------------
Agent Lessees
ANNEX D
TO
SCHEDULE NO._____
DATED THIS _____ DAY OF _________, 200__
TO MASTER LEASE AGREEMENT DATED AS OF FEBRUARY 1, 2002
STIPULATED LOSS SCHEDULE(2)
RENT PAYMENT DATE PRINCIPAL AMORTIZATION AMOUNT OUTSTANDING BALANCE*
----------------- ----------------------------- --------------------
THIS CHART WILL BE COMPLETED ONCE THE RATE IS SELECTED AND WE KNOW HOW
FREQUENTLY RENT WILL BE PAID. THE PRINCIPAL AMORTIZATION COMPONENT OF RENT WILL
CORRESPOND TO THE PRINCIPAL PAYMENTS ON THE TERM LOAN.
Initials:
-------- ------------
Agent Lessees
EXHIBIT NO. 2
XXXX OF SALE
KNOW ALL MEN BY THESE PRESENTS: General Electric Capital Corporation, for
itself and as Agent under that Amended and Restated Master Lease Agreement dated
as of December 8, 2000 between (i) Galaxy Industries Corporation, Mid State
Machine Products, Nationwide Precision Products Corp., and General Automation,
Inc. and (ii) General Electric Capital Corporation, for itself and as agent for
certain participants ("Seller"), for and in consideration of the sum of One
Dollar ($1) and other good and valuable consideration, provided by GENERAL
ELECTRIC CAPITAL CORPORATION, AS AGENT FOR THE LESSORS ("Buyer"), with offices
at 000 Xxxxxxx 0, Xxxxxx Xxxxx, Xxxxxxx, Xxxxxxxxxxx 000000, the receipt of
which is hereby acknowledged, do hereby sell, assign, transfer, set over and
convey to Buyer the equipment (the "Equipment") described in Exhibit A attached
hereto.
Buyer is purchasing the Equipment described above in reliance upon its
personal inspection and knowledge of the Equipment and in an "AS-IS, WHERE-IS",
condition.
SELLER MAKES NO WARRANTIES WITH RESPECT TO THE QUALITY, CONTENT,
CONDITION, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE OF THE EQUIPMENT
AND NO WARRANTIES AGAINST PATENT INFRINGEMENT OR THE LIKE.
IN WITNESS WHEREOF, Buyer and Seller have executed this Xxxx of Sale this
________ day of _________, 2002.
GENERAL ELECTRIC CAPITAL GENERAL ELECTRIC CAPITAL
CORPORATION, FOR ITSELF AND AS CAPITAL CORPORATION, AS AGENT
AGENT FOR CERTAIN PARTICIPANTS FOR LESSORS
By: By:
--------------------------------- ---------------------------------
Name: Name:
------------------------------- -------------------------------
Title: Title:
------------------------------ ------------------------------
